Ketchum v. Edwards

Pratt, J.: This is an appeal from an order of the Special Term, adjudging the defendant in contempt for disobedience of a decree made in an action between the parties hereto. The complaint in that action described the land of the plaintiff and the two rights of way which he claimed. The defendant appeared in the action by Hon. Wilmot M. Smith and answered, but before judgment the answer was withdrawn and judgment was taken by default, in accordance with the claim set up in the complaint. The judgment is in the following form : “ The summons and complaint in the above-entitled action, having been duly served upon the defendant on the 30th day of November, [162] 1894, and the defendant having duly appeared and answered by her attorney, Wilmot M. Smith, Esq., and the said Wilmot M. Smith, Esq., having, on the 14th day of December, 1894, by notice in writing, withdrawn the said answer, and this action having been duly noticed for trial at the Suffolk County Circuit, for April 15th, 1895, and having been regularly called on the calendar, and the plaintiff and his witnesses having been examined under oath, and on motion of Eliot J. Smith, the plaintiff’s attorney, it is ordered, adjudged and decreed that the plaintiff, Daniel W. Ketchum, have judgment against the defendant, Frances Edwards, and judgment is hereby rendered in favor of the plaintiff against the defendant, as follows: “ 1. That the defendant shall remove all obstructions from the three-rod road laid out or hereafter to be laid out in the village of Centre-Moriches, county of Suffolk, the middle line of which is described as follows-: Beginning on the west shore of East Seenix creek, at a stake at or near the middle of the dock, about 12 rods southerly from Alanson Edwards’ house; thence running north 75 deg. 30 min. west, 14 chains, 20 links, in a straight line to a stake set up on the east shore of West Seenix creek, adjoining land late of Alanson Edwards, deceased. “ 2. That the defendant shall remove all obstructions from the right of way two rods wide, extending from the southerly end of the highway near the residence of defendant, southerly to the said three-rod road. “ 3. That the defendant, Frances Edwards, is hereby forever restrained from erecting or maintaining any obstructions on said road or right of way. “4. That the plaintiff, Daniel W. Ketchum, recover from the defendant, Frances Edwards, the sum of six cents damages, and thirty-five and 81-100 dollars costs of this action. “ Dated April I'Uh, 1895.” This very plainly describes the location of the two-described rights of way, and then locates more especially the one two rods wide that commences at the end of the road near the defendant’s house. This judgment was duly served on the defendant and was perfectly understood by her and was willfully violated. There could not possibly be any mistake about the road two rods [163] wide commencing at the end of the old country road near defendant’s house. The evidence is that she not only obstructed this at its commencement, but built a fence clear across the peninsula from one creek to the other. The proceedings were regular and proper. It was proper to refer the matter to a referee, to take proof and report the same for the information of the court. (§ 1015, Code Civ. Proc.) It is too late to attack the judgment in this proceeding. To claim .that defendant was ignorant of the provisions of the judgment, or of its application, or what it described, or the location of the right of way, is puerile and against the great weight of evidence. The order should be affirmed, with costs. Hatch, J., concurred; Babtlett, J., dissented; Beowm, P. J., not sitting.